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This article is written by Vinay Kumar Palreddy, a student from Symbiosis Law School, Hyderabad. This article describes the evolution of constitutional morality by differentiating between time periods and commenting upon the same along with substantial judicial interpretation. 

Introduction

The long struggled nations under the thump of colonial rulers usually desired to have a democratic setup governing them. After achieving freedom, almost all such countries codified all the principles and core values of rights, duties, separation of powers into a document called the Constitution. The Constitution reflects all aims of a nation to grow in numerous aspects by carrying the ideals in it. Among such countries, India is one with the title of ‘world’s largest democracy’. The Constitution of India is the longest written Constitution in the world. It cherishes almost all the conceptions and mixed values that would be pertinent to reflect the aims of India as an evolving nation. Yet, there are certain concepts and principles which are not mentioned popularly in the Constitution but evolve to a position where they are able to control the fundamentals of laws and reasons behind the court judgments. One such scheme is the “Doctrine of Constitutional Morality.” Though the term constitutional morality is mentioned expressly in the Constitution only four times with the meaning of very mere significance, this concept has developed to a state of carving ratio decidendi in some of the recent and path-breaking judgments. 

Meaning and analysis of constitutional morality

Though it is yet to be defined in the Indian context, the crux of the doctrine of constitutional morality can be described as a mechanism to standby the ideals and the notions propagated by the Constitution in order to uphold the soul of democracy. The constitutional morality herein doesn’t, in any way, reflect the morality as perceived by the society but instead, it consists of values that endeavor to preserve the spirit and fundamentals of the Constitution. Constitutional morality consists of certain elements that include but are not limited to ideals of the preamble, rule of law, procedure established by law, freedom, equality, etc. This concept builds a foundation to dig deep into identifying the rationale and the values imbibed while applying a provision of the Constitution instead of applying it in the literal sense.

It is used especially by the judiciary as it is showered with the power of interpreting the Constitution in order to conserve the rights given to the people by the same book. Constitutional morality helps the citizens and the State to be conferred by all the rights which are actually given in the Constitution by further providing the mechanisms. This concept is being used by the judicial establishments since the operation of the Constitution began in the country. But, it was not so relevant and developed doctrine in the initial stages and contained different kinds of meanings from time to time. As time passed, especially in recent times, the courts began to use this doctrine for repealing the age-old laws and delivering the polished rights to the citizens by interpreting the spirit carried by certain provisions. Hence, we can deduce that this doctrine is being availed by the higher courts for refining the established laws as per the requirements arising out of a dynamic society. 

Popular counter views

On the other hand, counter-arguments from those who oppose this doctrine cannot be ignored. First of all, they observe that this concept is an unconstrained power to the judiciary which is being used by the judges as per their convenience. This has also resulted in the contradicting viewpoints of the judges in the same case where they rendered constitutional morality as the reasoning for their own viewpoints. For instance, in the case of Indian Young Lawyers Association v. The State of Kerala, Justice Indu Malhotra observed that the ban of women in the menstrual age in the Sabarimala is valid and on the other hand Justice D.Y. Chandrachud inclined along with the majoritarian view that stated that the ban cannot be permitted in the light of constitutional morality.

Secondly, as asserted by Mr. K.K. Venugopal, Attorney General of India, constitutional morality is the mercury slipping through the fingers in order to suggest that it has no direction or regulation. In his view, it is a power that is created for themselves by the judiciary, and such unregulated power will result in arbitrary usage. Contradicting Mr. Venugopal’s viewpoint, Mr. Dipak Misra, Former CJI of India, observed that constitutional morality is a part of constitutional silence and hence, the power under this concept need not be mentioned expressly in the Constitution. 

Historical timeline before the Constitution

First of all, it is pertinent to observe that constitutional morality does not have a strict definition and various instances suggest that this concept is used by the courts in different contexts while rendering an outcome in the interest of justice. But, the timeline of this concept starts in the 19th century when George Grote, a British historian, wrote volumes of books on Greece History. While he was expounding upon the Constitutional abidance with respect to the city of Athens, Grote brought in the constitutional morality and defined it. According to him, it means the highest respect is showered on the ideals of the Constitution and the actions of the government which are subject to the law along carrying the freedom to speak, faith, and equality. He also mentioned the existence of this concept in England since the glorious revolution and warned that it takes a lot of difficulty in diffusing this notion into society. It is pertinent to mention that Grote did not mean to give powers to the judicial establishments to nullify the actions undertaken by the government by the concept of constitutional morality. 

Later, in 1948, while Dr. Ambedkar was speaking about the draft Constitution in the constituent assembly, the notion of constitutional morality was brought in. He started off by saying that though he believed that the mechanism of administration must be established by the legislature instead of the Constitution, because of the lack of constitutional morality in the country, the forms of administration shall be provided by the Constitution itself. To substantiate this, he rendered a passage from Grote’s treatise on Greek history which states that the risk of omitting the duty to mention administrative mechanism in the Constitution cannot be taken when the people of such a nation does not understand the constitutional morality. In an overview of that speech, Dr. Ambedkar observed that there is a need for the Indian population to understand and diffuse the ideals of constitutional morality. 

Scenario after the independence

Though constitutional morality is not mentioned in the Constitution, the term morality is mentioned in Article 19(2), Article 19(4), Article 25(1), and Article 26. The significance of mere morality mentioned in these provisions is lesser than that of constitutional morality as their meaning is functional in different contexts. The evolution of the doctrine of constitutional morality is not found in the Constitution but in the judgments involving the interpretation of the constitutional provisions. 

Initial references

First of all, the concept was mentioned in Kesavananda Bharati v. The State of Kerala referred to the concept of constitutional morality to a mere extent of explaining Grote’s and Ambedkar’s views on the concept. Later, in the case of S.P Gupta v. Union of India, which is also known as the first judge’s case, this concept was merely referred to but was not expounded. With respect to constitutional morality, it was held that the breach of any convention which is a constitutional practice shall be considered as a breach of constitutional morality even though such convention is neither legislation nor enforceable by the courts. Again, in the case of NCT Delhi v. Union of India, this concept was just mentioned where it was observed that constitutional morality refers to sticking to constitutional principles. Moreover, the court observed that if a country has a Constitution, there is an obvious assurance that everyone including citizens and state functionaries shall be bound by the fundamentals of the Constitution. Other than these judgments, there are certain other decisions of the courts where it was merely mentioned.

Recent developments

Some of the recent judgments transformed the course of usage of this doctrine as it is clearly expounded to the core by the top court in the country. The first among such cases is Navtej Singh v. Union of India. This is a well-known case around the world as it provided a mechanism to partially allow homosexuality in the largest democracy in the world. In this case, the Supreme Court struck down Section 377 of IPC which was used to punish those who participated in Carnal intercourse against nature’s order. In this case, CJI Dipak Mishra observed that popular opinion must not matter in the court while deciding a case. Instead, constitutional morality must play a significant role. Moreover, he also held that the notion of transforming society into an inclusive and pluralistic one is the aim of constitutional morality instead of containing the literal text of the provisions. On the other hand, Justice D.Y. Chandrachud scrutinized the difference between public morality and constitutional morality and suggested that the latter will outweigh the former. This case was decided on various other grounds such as privacy, human dignity, and liberty showered by the Constitution.

Thereafter, the case of Joseph Shine V. Union of India played a significant role in the development of the doctrine of constitutional morality. In the light of gender equality, Section 497 of IPC was struck down by the SC as there is punishment only for men in case of adultery. This case is a clear example of how the apex court is inclined towards the concept of constitutional morality by ignoring public morality. This judgment made it loud and clear that the woman is not a commodity owned by a man and shattered the concept that the husband is master of a woman that had been portrayed in this law for a very long time. The bench in this case considered that the right to privacy also included sexual privacy and also held that non-prosecution of women for adultery is violative of certain fundamental rights. The arguments of respondents representing the popular morality that consensual relationships outside the institution of marriage are detrimental to the institution itself were not taken into consideration as the court felt that constitutional morality is much required than popular morality. 

The most recent Indian Young Lawyers Association v. the State of Kerala propounded further into the doctrine of constitutional morality as the religious faith and the constitutional provisions came into conflict. In this case, the ban on women belonging to the age group between 10-50 years into the Sabarimala temple was in conflict. It was held by the court that public morality cannot be used to justify the discrimination against women to enter the temple. It was clearly put forth by the court that the public morality mentioned in Article 25 is a synonym to the constitutional morality itself. Most importantly, it was observed that the concept of constitutional morality must have a permanent effect rather than swaying along with the time.

The elements contained in the basic structure must be static in order to hold to the vision of the makers of the Constitution. Other than this, Justice D.Y.Chandrachud observed the significance of the concept of constitutional morality that it provides for the need of improving people’s trust in democracy. It also provides the mechanism and chance of self-renewal. The only shortcoming of this judgment which is being effectively used by the adversaries of constitutional morality is that the same concept is used by two different judges to come to two contradictory conclusions where one held that a ban on women is allowed and one concluded that a ban cannot be continued in the light of discrimination towards women. This stands as the popular judgment about constitutional morality in recent times.

Conclusion

Though there is a division between the judges and the luminary advocates on the usage of the doctrine of constitutional morality, this has been a significant tool in deciding the considerable amount of cases as this doctrine intends to uphold the constitutional values, which would be functional in the ages to come. But, the point of conflict arises only with respect to its usage and not the principles imbibed in itself. As the scope for misusing this doctrine cannot be avoided with the existing mechanism, there is a need for a uniform definition and structured mechanism regarding constitutional morality. A bench has already been constituted for this purpose in the Supreme Court and hopefully, such purpose shall be fulfilled very soon. 

References


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